Santelises v. Davis et al

Filing 7

ORDER DISMISSING CASE. Signed by Judge Xavier Rodriguez. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CESAR R. SANTELISES,
TDCJ No. 01923094,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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SA-17-CA-615-XR

DISMISSAL ORDER
Before the Court is pro se Petitioner Cesar Santelises’s petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254 (Docket Entry 1), as well as his Response to the Court’s Show
Cause Order (Docket Entry 6). For the reasons set forth below, Petitioner’s federal habeas
corpus petition is dismissed with prejudice as barred by the one-year statute of limitations
embodied in § 2244(d). Petitioner is also denied a certificate of appealability.
Background
In April 2014, Petitioner pleaded guilty to the offense of aggravated assault and was
sentenced to fifty years of imprisonment. State v. Santelises, No. 2013-CR-2907 (290th Dist.
Ct., Bexar Cnty., Tex. Apr. 2, 2014). Because his plea bargain agreement waived his right to
appeal, the Fourth Court of Appeals dismissed Petitioner’s appeal in June 2014. Santelises v.
State, No. 04-14-278-CR (Tex. App.—San Antonio, June 25, 2014, no pet.).

Petitioner then

waited until July 16, 2015, to file to a state habeas corpus application challenging his conviction,
which was ultimately denied without written order on September 7, 2016. Ex parte Santelises,
No. 85,156-01 (Tex. Crim. App.).

Petitioner placed the instant federal habeas petition in the prison mail system on
June 28, 2017. In the § 2254 petition, Petitioner alleges his trial counsel rendered ineffective
assistance by failing to follow through once the trial court granted the defense’s motion for a
mental health expert. Without the assistance of a mental health expert, Petitioner contends, he
was unable to understand the details of his plea bargain agreement, which rendered his guilty
plea involuntary.
Timeliness Analysis
“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state
prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198, 209 (2006). Section 2244(d)
provides, in relevant part, that:
(1) A 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.
In this case, Petitioner’s conviction became final July 25, 2014, when his time for filing a
petition for discretionary review with the Texas Court of Criminal Appeals expired. See Tex. R.
App. P. 68.2 (providing a petition for discretionary review must be filed within thirty days
following entry of the court of appeals’ judgment); Mark v. Thaler, 646 F.3d 191, 193 (5th Cir.
2011) (holding that when a petitioner elects not to file a PDR, his conviction becomes final under
AEDPA at the end of the 30–day period in which he could have filed the petition) (citation
omitted). As a result, the limitations period under § 2244(d) for filing a federal habeas petition

challenging his underlying guilty plea and conviction expired a year later on July 25, 2015,
unless it is subject to either statutory or equitable tolling. 1
A.

Statutory Tolling
Petitioner does not satisfy any of the statutory tolling provisions found under

§ 2244(d)(1). There has been no showing of an impediment created by the state government that
violated the Constitution or federal law which prevented Petitioner from filing a timely petition.
28 U.S.C. § 2244(d)(1)(B). There has also been no showing of a newly recognized constitutional
right upon which the petition is based, and there is no indication that the claims could not have
been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(C)-(D).
However, Petitioner does qualify for tolling under § 2244(d)(2), which provides that
“[t]he time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.” As discussed previously, Petitioner filed his state
habeas petition July 16, 2015, and was later denied September 7, 2016. See Richards v. Thaler,
710 F.3d 573, 578-79 (5th Cir. 2013) (holding that the pleadings of pro se inmates are deemed
filed at the time they are delivered to prison authorities). Accordingly, the state habeas
application tolled the limitations period for 420 days, making Petitioner’s federal petition due on
September 17, 2016. Because he did not file his § 2254 petition until June 28, 2017—over eight
months after the limitations period expired—his petition is barred by the one-year statute of
limitations.

1

Although Petitioner argues the Court incorrectly calculated his final conviction date by using the date his
appeal was dismissed as opposed to the date the mandate issued from the court of appeals, Fifth Circuit precedent
clearly indicates the mandate date is irrelevant for limitations purposes. See Roberts v. Cockrell, 319 F.3d 690, 695
(5th Cir. 2003) (holding “the issuance of the mandate by the state court of appeals is of no consequence for the
purposes of § 2244(d)(1)(A).”).

B.

Equitable Tolling
Despite being given the opportunity to establish why his petition should not be dismissed

as untimely (Docket Entry 4), Petitioner has failed to provide this Court with a valid reason to
equitably toll the limitations period in this case. The Supreme Court has made clear that a
federal habeas corpus petitioner may avail himself of the doctrine of equitable tolling “only if he
shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” McQuiggin v. Perkins, 133 S. Ct.
1924, 1931 (2013); Holland v. Florida, 560 U.S. 631, 649 (2010). However, equitable tolling is
only available in cases presenting “rare and exceptional circumstances,” United States v. Riggs,
314 F.3d 796, 799 (5th Cir. 2002), and is “not intended for those who sleep on their rights.”
Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012).
Petitioner contends that he is entitled to equitable tolling because he diligently attempted
for four months—from August 2014 until December 2014—to obtain a copy of the trial court
records to assist in preparing his federal petition. Petitioner admits he received the record from
his trial counsel in December 2014, yet his federal petition was not due until September 17,
2016, over twenty-one months later. Petitioner fails to demonstrate how the short period of time
he was without records stood in the way of timely filing his petition, much less that he diligently
pursued once the records were obtained. Moreover, the lack of access to state court records by
an inmate does not present the “rare and exceptional” circumstances that would warrant
equitable tolling. See Tiner v. Treon, 232 F.3d 210 (5th Cir. 2000) (holding allegations that the
State, the district attorney, and his attorney on direct appeal would not provide inmate a copy of
his state records did not constitute rare and exceptional circumstances warranting equitable
tolling); see also Roughley v. Cockrell, No. 01–11378, 2002 WL 1899622 (5th Cir. July 12,

2002) (unpublished) (rejecting a claim for equitable tolling based on an inmate’s unfulfilled
request for state court records); Cofer v. Johnson, No. 99–40878, 2000 WL 1029201 (5th Cir.
July 14, 2000) (unpublished) (rejecting a claim for equitable tolling based on delay in receiving a
copy of state court records).
Petitioner also contends his untimeliness should be excused because he was admitted to a
mental hospital following a suicide attempt on February 1, 2015, and he was unable to work on
his petition until his release sometime in June 2015. Assuming these dates are correct, however,
Petitioner was only incapacitated for five months at the most, and still had over fourteen months
following his release to timely file a petition. Thus, he fails to establish that his hospitalization
in early 2015 stood in the way of filing a petition or that he diligently pursued relief once he was
released. Furthermore, a claim of mental incapacity does not automatically entitle the petitioner
to equitable tolling.

Fisher v. Johnson, 174 F.3d 710, 715-716 (5th Cir. 1999).

Mental

incapacity may support equitable tolling “if the mental impairment precluded the prisoner from
asserting his legal rights.” Id. But to qualify for equitable tolling, the prisoner must provide
factual support for the assertion that his mental incompetency prevented him from asserting his
legal rights. See Smith v. Johnson, 247 F.3d 240 (5th Cir. 2001) (equitable tolling is only
appropriate in exceptional circumstances when the prisoner has presented sufficient facts to show
that mental illness precluded him from asserting his rights). Petitioner has presented no factual
support for his assertion that he was unable to accomplish any legal work while he was at the
mental health hospital. Equitable tolling is therefore unavailable for this period of time.
Finally, Petitioner’s ignorance of the law, lack of legal training or representation, and
unfamiliarity with the legal process do not rise to the level of a rare or exceptional circumstance
which would warrant equitable tolling of the limitations period. United States v. Petty, 530 F.3d

361, 365-66 (5th Cir. 2008); see also Sutton v. Cain, 722 F.3d 312, 316-17 (5th Cir. 2013) (a
garden variety claim of excusable neglect does not warrant equitable tolling). Because Petitioner
failed to assert any specific facts showing that he was prevented, despite the exercise of due
diligence on his part, from timely filing his federal habeas corpus petition in this Court, his
petition is untimely and barred by § 2244(d)(1).
Conclusion
Rule 4 Governing Habeas Corpus Proceedings states a habeas corpus petition may be
summarily dismissed “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” Based on the
foregoing reasons, Santelises’s federal habeas corpus petition does not warrant federal habeas
corpus relief.
Accordingly, IT IS HEREBY ORDERED that:
1.

Petitioner Santelises’s § 2254 petition (Docket Entry 1) is DISMISSED WITH

PREJUDICE as time-barred;
2.

Petitioner failed to make “a substantial showing of the denial of a federal right”

and cannot make a substantial showing that this Court’s procedural rulings are incorrect as
required by Fed. R. App. P. 22 for a certificate of appealability. See Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). Therefore, this Court DENIES Petitioner a certificate of appealability. See
Rule 11(a) of the Rules Governing § 2254 Proceedings; and
3.
CLOSED.

All other remaining motions, if any, are DENIED, and this case is now

It is so ORDERED.
SIGNED this the 12th day of September, 2017.

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XAVIER RODRIGUEZ
United States District Judge